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             Commission                                   RULING NUMBER COM TB 006/2010

COMMISSION HEARING                                       TORONTO, ONTARIO – MAY 18, 2010



On August 12, 2009, the Ontario Racing Commission (“ORC”), issued, inter alia:

  i.    A Notice to the Industry entitled “New Rules on Urging the Horse in Racing”, effective
        September 1, 2009;
  ii.   Policy Directive No. 3-2009, “Penalty Guidelines for Inappropriate Urging of a Horse in
        Thoroughbred Racing”; and
 iii.   Thoroughbred Directive Number 4-2009, an amendment to the Rules of Thoroughbred
        Racing which included Rule 9.27.02 in relation to riding crop requirements.

On September 2, 2009, Chantal A. Sutherland (“Sutherland”), a jockey (Licence No. 102124),
rode the horse, SAN SOUSI in the second race at Woodbine Racetrack and finished first.

Michael J. Doyle (“Doyle”), was the trainer (Licence No. 121298) and owner (Eaton Hall Farm
and M.J. Doyle Racing Stable Ltd.) of the horse, SANS SOUSI.

On September 4, 2009, the Track Stewards issued Ruling Number TB 6057/2009 which fined
Sutherland $200 for failure to use an approved riding crop during the race.

As a consequence of this Ruling and pursuant to the Rules, SANS SOUSI was disqualified from
first to ninth place. The horse, BOLD MANEUVER moved from second to first place.

On September 5, 2009, Doyle filed an Appeal against the disqualification of his horse, SANS

A Panel of the ORC, consisting of the Chair Rod Seiling, the Vice Chair James Donnelly and
Commission Member Bernard Brennan, D.V.M., was convened to hear this matter.

Michael J. Doyle appeared in person at the hearing. Peter F.C. Howard appeared as counsel
for Doyle. Gail Cox and John Menary appeared in person as owners of the horse, BOLD
MANEUVER. Anthony Williams appeared as counsel for the Administration of the ORC.

After reading the exhibits which were filed, reviewing the evidence and considering the closing
submissions, the Panel denied the appeal of Michael J. Doyle.

The decision of the Track Stewards which placed the horse, SANS SOUSI from first to ninth
was upheld.

DATED at Toronto this 27th day of May 2010.

                                                 John L. Blakney
                                                 Executive Director
             Racing                                        RULING NUMBER COM TB 006/2010
                                                                                            Page 2

COMMISSION HEARING                                        TORONTO, ONTARIO – MAY 18, 2010

                                   REASONS FOR DECISION


1. Thoroughbred licensee, Michael Doyle, appealed a decision of the Stewards, TB Ruling No.
6058/09 (Ex. 1, tab 13) wherein the horse, SANS SOUSI, which raced in the second race at
Woodbine on September 2, 2009, and was ridden by jockey, Chantal Sutherland, was
disqualified from its first place finish and placed last because Ms. Sutherland carried a
prohibited riding crop during the race. September 2, 2009 was the first day of racing at
Woodbine wherein TB Rule No 9.27.02 applied.


2. TB Rule 9.27.02 was implemented following an exhaustive consultation process with the
entire thoroughbred racing industry. The intent of the rule is to protect the health and welfare of
the horse and to protect the safety of participants in the sport. The Ontario Racing Commission
(ORC) undertook this initiative under its mandate of protecting the health and welfare of the
horse and the safety of participants. It viewed any potential violation a serious breach and as
such, established severe consequences for such violations to serve as a deterrent.

3. Legal counsel for the ORC, Anthony Williams and for the appellant, Peter Howard, via their
respective Factums, Exhibits 2 and 3 respectively, clearly indicated that there was no
disagreement between the parties as to the facts. John Menary, co-owner of the horse, BOLD
MANEUVER, was granted standing and took a position of supporting the Administration.

4. That is, there was an acknowledged breach of TB Rule No. 9.27.02 during the race. This
rule, following a fifteen-day implementation period, came into full force on September 1, 2009.
Prior to full implementation, the ORC held industry meetings, issued various communications
including a Notice to Industry dated August 12, 2009 (Ex. 1, tab 2). Policy Directive No. 3 -
2009 (Ex 2, tab 2) dated August 12, 2009, dealt with the penalty guidelines for a violation of TB
9.27.02 while Thoroughbred Directive Number 4-2009 dated August 12, 2009, added a new
section outlining the specifics for the new riding crop. Following subsection (f) of the rule it
reads, “Use of a riding crop in a race where the type of riding crop has not been approved by
the Stewards or does not meet the requirements of the rule, will lead to automatic

5. Jockey Sutherland admitted her breach of the rule, and was fined $200, TB Ruling No.
6057/09 (Ex. 1, tab 14). Ms. Sutherland did not appeal the penalty. While Ms. Sutherland could
not remember if she read the actual rules regarding the new riding crop, she did recall attending
a seminar on it and was familiar with the basic tenets of the rule.

6. Ms. Sutherland testified that she first became aware she had inadvertently “grabbed” the
wrong crop during the post parade some six to ten minutes before the start of the race when
fellow jockey, Emma Jane Wilson, told her she did not have the new approved crop. She
proceeded immediately to outrider, Darin Fortune, who instructed her to go to the gate and get a
new crop. She did not ask Mr. Fortune to contact the Stewards but assumed he would. At the
gate, she told them of her problem. One of the gate crew was instructed to get her a new
approved crop but came back saying they did not have anymore and she was provided with
             Racing                                         RULING NUMBER COM TB 006/2010
                                                                                             Page 3

COMMISSION HEARING                                         TORONTO, ONTARIO – MAY 18, 2010

another unapproved crop. She testified that she was told to ride with the old unapproved crop
by the racing personnel at the starting gate but never spoke directly to the official starter, Drew
Brown. She considered riding without a crop but was concerned she would be penalized. She
never asked for time to have someone bring her an approved riding crop nor did she ask
anyone at the gate to contact the Stewards as to her situation.

7. Senior Steward, William McMahon, testified that the Stewards were not informed of the rule
breach until after the race, despite the fact that two outriders and the starter have radios for
immediate contact with them. Extra precautions were put in place that day to ensure
compliance with the new rule. Steward Gunnar Lindberg made arrangements for an
announcement in the jockeys’ rooms that day, related to the requirements of jockeys to use the
new riding crop. The Clerk of the Scales and the Paddock Judge were asked to be on alert for
compliance, and the track ran trailers on the television monitors.

8. Mr. Howard argued that the owners had done nothing wrong and therefore should not have
to absorb a penalty of $40,800, the amount of the purse winnings lost by the placement. They
were not responsible for their jockey’s actions, he claimed, and therefore the disproportionate
penalty was unfair to the appellant. It was his position that there was no evidence that the
outcome would have been any different had Ms. Sutherland complied with the new rule. He
contended that it was in the best interests of racing to allow the appeal and urged the Panel to
utilise TB Rule No. 24.03.

9. Mr. Howard submitted that the Stewards are estopped from disqualifying the horse. The
basis for his argument was that under common law doctrine, estoppel applies where (a) a
promisor, either by words or conduct, makes a promise or assurance, (b) the promise or
assurance was made to affect a legal relationship, or (c) the promissee relied on the
representation to their detriment. In support of this position, he provided the precedent case of
Mount Sinai Hospital Centre v Quebec, 2001 SCC at para 45-47. Mr Williams countered that
the case was not similar to this matter as the case related to a pattern of conduct over a seven-
year period.

10. Mr. Howard also referred the Panel to Aurchem Exploration Ltd. v. Canada [1992] F.C.J. No.
427 (F.C.T.D.). He submitted that the Stewards were not bound by the strict compliance of Rule
9.27.02, and in fact are precluded from such.

11. Under the Rules of Racing in Chapter 2, a list of racing officials includes starter and
assistant starter. No evidence was led to indicate either position had the powers entrusted to
the Stewards under the Rules of Thoroughbred Racing. Mr. Howard referred the Panel to
Chapter 11 of the Rules wherein those racing officials’ respective powers are outlined. Their
authority is limited to certain situations once the horses are on the track and do not refer to any
ability to ride without approved equipment.


12. Did the Stewards correctly interpret and apply TB Rule No. 9.27.02? Should the Stewards
decision be estopped based on the precedent cases cited by the appellant?
             Racing                                        RULING NUMBER COM TB 006/2010
                                                                                            Page 4

COMMISSION HEARING                                        TORONTO, ONTARIO – MAY 18, 2010


13. After carefully listening to the testimony and reviewing the evidence and the documents
filed, the Panel denies the appeal.

Reasons for Decision

14. There is no dispute that Jockey Sutherland rode SANS SOUSI in the second race at
Woodbine on September 2, 2009, with an unapproved riding crop, thereby violating TB Rule No.
9.27.02. The rule is specific; such a violation will lead to the said horse being disqualified. The
rule cannot be subverted by on track racing officials in the employ of the track operator.

15. It is in the best interests of racing that the Stewards decision be upheld. Participants and
fans expect and deserve that every race be run according to the rules. The only difference in
this case from some other rule violation by a jockey such as carrying the wrong weight is that
this violation occurred on the first day of the rule’s implementation. Nevertheless, it does not
mitigate the need for the strict enforcement of the rule just as the Commission enforces all its
rules. To allow the appeal to succeed would seriously jeopardise the future prospects of an
industry where it is expected and deemed essential that all participants obey all the rules
pertaining to a race.

16. It is irrelevant to whether Ms. Sutherland had or did not have an advantage using an
unapproved riding crop. She violated Rule 9.27.02 and that rule calls for a disqualification.
Fairness must be distinguished from favour. Fairness embraces all parties having an interest;
the appellant, the other participants in the race and the public interest in racing. Fairness is
premised upon uniform application of the rules of racing. When a rule is arbitrarily or
inconsistently applied to favour one participant to the detriment of others, there can be no
fairness. To fail to apply the disqualification provision in the rule would provide a substantial
benefit for the appellant at the expense of an equal detriment to the racing interest of the horse
that finished second to SANS SOUSI. The fairness submission must fail.

17. The onus for the rule breach is clearly on Sutherland. Her actions post the violation support
this fact. She accepted her penalty and paid her fine. She did not appeal the Stewards’ ruling.
She had options. She could have asked for time to have someone bring her an approved riding
crop, she could have asked one of the on track racing officials to call the Stewards or she could
have ridden without one. She chose to ride with what she knew to be an unapproved crop.

18. There were a series of unfortunate lapses preceding race 2 at Woodbine on September 2,
2009. It started with Jockey Sutherland grabbing the wrong crop. It was followed by the failure
of racing officials in the paddock to see she had the wrong crop and also by the horse’s trainer,
Mr. Doyle to see the same. Once on the track, the racing officials, once Sutherland informed
them of the problem, should have contacted the Stewards. They did not and, there should have
been a spare approved riding crop available at the starting gate. Nevertheless, Ms. Sutherland
still should have opted to follow one of the aforementioned options that would have negated the
preceding lapses and ensured that she complied with the Rule.
              Racing                                         RULING NUMBER COM TB 006/2010
                                                                                              Page 5

COMMISSION HEARING                                          TORONTO, ONTARIO – MAY 18, 2010

19. Contrary to Mr. Howard’s submission, owners have a responsibility. It is for that very reason
the Commission has instituted owner responsibility provisions. Owners are responsible for the
people they hire to care for and ride their horses. Implicit in the rule is that their instructions to
their representatives must be, “Obey the rules”. Mr. Doyle bore that responsibility as he was
both the owner and trainer of the horse. As such, he had a responsibility to ensure the jockey
he named to ride his horse did not violate the rules of racing by using an unapproved riding
crop. Given that TB Rule No. 9.27.02 was new for Woodbine that very day, September 2, 2009,
it is reasonable to expect that he would check to ensure his jockey was carrying the legal riding
crop just as others were taking precautionary measures to try to prevent such a mishap. It is
unreasonable to expect he was not aware of the new rule enforcement that day given the
evidence of the many initiatives undertaken to remind all the participants.

20. The racing officials that allegedly told jockey Sutherland to ride the race with the unapproved
riding crop are not Ontario Racing Commission officials. They are racing officials employed and
paid by Woodbine Entertainment Group, the track owner and operator. They are licensed by
the Commission just as grooms, trainers, announcers, etc. are licensed. Only the Stewards
have the delegated authority from the Commission to act. Therefore the estoppel submission

DATED this 27th day of May 2010.

Rod Seiling

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